United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE.
Terrell Brooks, a federal inmate, filed this 28 U.S.C. §
2241 petition ("§ 2241 Petition, " ECF No. 1).
For the reasons set forth below, the § 2241 Petition
will be dismissed for lack of jurisdiction.
pled guilty to possession of a firearm by a convicted felon
and was sentenced to the mandatory minimum sentence under the
Armed Career Criminal Act ("ACCA") of 180 months in
prison. United States v. Brooks, 296 Fed.Appx. 327,
328 (4th Cir. 2008) . Brooks challenges his enhanced sentence
under ACCA. (§ 2241 Pet. 1-2.) Brooks contends
that in light of the decisions in United States v.
Newbold, 791 F.3d 455 (4th Cir. 2015), and United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011), he no
longer has three predicate felonies for an ACCA sentence.
(Id.) On October 24, 2017, Respondent filed his
response and agreed that, in light of Newbold, one
of Brooks's prior drug offenses no longer qualifies as
"as a 'serious drug offense' predicate for the
defendant's ACCA sentence of 15 years." (Resp. 4,
ECF No. 8.) Respondent further conceded that Brooks "no
longer qualifies under ACCA and his maximum sentence is only
10 years in prison. Because he has already served that amount
[of time], the court should order his release from
prison." (Id. at 4-5.) In making this
concession, Respondent, however, failed to address how, under
the established precedent for the United States Court of
Appeals for the Fourth Circuit, the Court had jurisdiction to
grant such relief under 28 U.S.C. § 2241. Accordingly,
by Memorandum Order entered on October 25, 2017, the Court
appointed counsel for Brooks and directed the parties to file
further briefs with respect to the issue of jurisdiction. The
parties have filed the required briefing.
reasons that follow, the Court finds that it lacks
jurisdiction under 28 U.S.C. § 2241 to grant Brooks
JURISDICTION UNDER 28 U.S.C. § 2241
courts are courts of limited jurisdiction, "constrained
to exercise only the authority conferred by Article III of
the Constitution and affirmatively granted by federal
statute." In re Bulldog Trucking, Inc., 147
F.3d 347, 352 (4th Cir. 1998) (citations omitted).
Accordingly, a federal court is required, sua
sponte, to determine if a valid basis for its
jurisdiction exists, "and to dismiss the action if no
such ground appears." Id. (citations omitted).
motion made pursuant to 28 U.S.C. § 2255 "provides
the primary means of collateral attack" on the
imposition of a federal conviction and sentence, and such a
motion must be filed with the sentencing court. Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting
Cox v. Warden, Fed. Pet. Ctr., 911 F.2d 1111, 1113
(5th Cir. 1990)) . A federal inmate may not proceed under 2 8
U.S.C. § 2241 unless he or she demonstrates that the
remedy afforded by 28 U.S.C. § 2255 "is inadequate
or ineffective to test the legality of his detention."
28 U.S.C. § 2255(e). "For example, attacks on the
execution of a sentence are properly raised in a § 2241
petition." In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996); Hanahan v. Luther, 693
F.2d 629, 632 n.l (7th Cir. 1982)). Nevertheless, the United
States Court of Appeals for the Fourth Circuit has emphasized
that "the remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision or because
an individual is procedurally barred from filing a §
2255 motion." Id. (citations omitted).
Fourth Circuit has stressed that an inmate may proceed under
§ 2241 to challenge his conviction "in only very
limited circumstances." United States v. Poole,
531 F.3d 263, 269 (4th Cir. 2008) (internal quotation marks
omitted). The "controlling test, " id., in
the Fourth Circuit is as follows:
[Section] 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of conviction,
settled law of this circuit or the Supreme Court established
the legality of the conviction; (2) subsequent to the
prisoner's direct appeal and first § 2255 motion,
the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be
criminal, - and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000)
(emphasis added). The Fourth Circuit formulated this test to
provide a remedy for the "fundamental defect presented
by a situation in which an individual is incarcerated for
conduct that is not criminal but, through no fault of
his [or her] own, [he or she] has no source of redress."
Id. at 333 n.3 (emphasis added) . The Fourth Circuit
has instructed that if a § 2241 petitioner cannot
satisfy the test of In re Jones, the
"unauthorized habeas motion must be dismissed for lack
of jurisdiction." Rice v. Rivera, 617 F.3d 802,
807 (4th Cir. 2010). Brooks obviously cannot satisfy this
test, because his conduct of conviction-possession of a
firearm by a convicted felon-remains criminal.
parties acknowledge that In re Jones remains the
controlling test in the Fourth Circuit, but contend that the
"fundamental defect" test also embraces
circumstances for individuals whose conduct remains criminal,
but his or her sentence exceeds the statutory maximum
sentence. As explained below, adoption of this view requires
a revision of the controlling test in the Fourth Circuit and
not merely an interpretation of the binding precedent.
See United States v. Surratt, 797 F.3d 240, 248-50
(4th Cir. 2015); Farrow v. Revell, 541 Fed.Appx.
327, 328 (4th Cir. 2013) (citation omitted) (concluding
petitioner's "challenge to his armed career criminal
status is not cognizable in a § 2241 petition");
see Poole, 531 F.3d at 267 n.7 ("Fourth Circuit
precedent has . . . not extended the reach of the savings
clause to those petitioners challenging only their
sentence." (citing In re Jones, 226 F.3d at
333-34)). In the absence of an intervening decision from the
Supreme Court or the Fourth Circuit, such a revision is
beyond the power of this Court.
re Jones made a "clear limitation . . . that,
before the case can be used to invoke § 2255 (e), the
law must have changed 'such that the conduct of which the
prisoner was convicted is deemed not to be
criminal.'" Surratt, 797 F.3d at 248 (quoting In
re Jones, 226 F.3d at 334). Citing Carachuri-Rosendo
v. Holder, 560 U.S. 563 (2010), Brooks contends that
"it is not only logical, but arguably required to
describe Mr. Brooks as having been 'convicted' under
ACCA. On this understanding Jones applies full force
on its own terms, and allows a habeas petition for a claim of
actual innocence of the sentencing enhancement." (Reply
3, ECF No. 11.) Surratt raised a similar argument and the
Fourth Circuit explained why it was foreclosed by the
[Surratt] argues that his predicate convictions constitute
elements of a separate, aggravated offense for recidivists.
If that proved true, we might say that Surratt was not guilty
of the prior conviction "element, " and therefore
innocent of the recidivist offense. Yet we do not treat a
prior conviction "as an element of [the] offense."
Almendarez-Torres v. United States, 523 U.S. 224,
247 (1998); see alsoAlley ...